iDukfe 


TLibvaxii* 


PMnphJat  Collection 
Duke  University  Library, 


QJV..V. 


^^^5^/^. 


AN  EXAMINATION  <j 


OF    PARTS    OF    THE 


REPORT    OF    COMMISSIONERS. 


APPOINTED   TO  ASCERTAIN   THE 


RIGHTS  OF  THE  STATE.  AND  OF  RIPARIAN  OWNERS, 


-TO- 


]^EW  JERSEY. 


PRESENTED   BY   THEM   TO   THE   LEGISLATURE,   FEBRUARY    1.   1865, 


|riseij  (fitn: 

PKIXTED  AT  THE  TIMES  OFFICE,    43  MONTGOMERY  STREET. 


1 


1865. 

Pamphlet  Collection 
Dftks  University  Library 


^9<e- 


AI  EXAMINATION 


OF   PABTS   OF  THE 


REPORT    OF    COMMISSIONERS, 


APPOINTED   TO  ASCERTAIN   THE 


RIGHTS  OF  THE  STATE,  AND  OF  RIPARIAN  OWNERS, 


-TO- 


♦  ®i 


NEW  JERSEY. 


PRESENTED  BY  THEM  TO  THE   LEGISLATURE,   FEBRUARY   1,   1865, 


PRINTED  AT  THE  TIMES  OFFICE,   43  MONTGOi>{EHY  STREET. 

•  1866. 


The  contents  of  the  following  pages  originally  ap- 
peared as  newspaper  communications — the  first  in 
the  "  Monitor"  at  Trenton,  during  the  session  of  the 
last  Legislature — the  second,  in  the  "State  Gazette" 
soon  afterwards.  They  attracted  some  attention  at 
the  time  of  their  publication,  and  as  the  same  ques- 
tions, which  gave  occasion  for  their  production,  may 
again  be  presented  for  the  consideration  of  future 
Legislatures,  it  has  been  thought  advisable  to  reprint 
them,  in  such  form  that  they  may  be  conveniently 
preserved  for  use  if  required. 


On  the  Ownership  of  Lands  Under  Water, 


If  the  old  legal  maxim  be  true,  that  "  Ignorance  of 
the  law  excuseth  no  man,"  then  are  a  majority  of  the 
people  of  New  Jersey  inexcusable  respecting  one  point 
of  law  at  least — the  legal  rights  of  shore  owners  in 
adjoining  lands  which  are  covered  by  water. 

Widely  different  opinions  have  prevailed  in  the 
halls  of  legislation  and  in  courts  of  law  relating  to  this 
matter — within  the  last  half  century  acts  have  been 
passed  recognizing  the  rights  of  ownership  in  them 
by  individuals,  and  other  acts  asserting  by  impli- 
cation, the  ownership  of  all  submerged  lands  by  the 
State  —  and  a  similar  diversity  has  prevailed  in  the 
decisions  of  the  courts.  Thus  the  constantly  vary- 
ing legislation  proceeding  from  the  former,  and  the 
vacillating  action  of  the  latter,  have  kept  the  proprie- 
tors of  shore  line  property  ignorant  of  the  law,  or  at 
all  events  ignorant  of  the  phase  it  might  assume  when 
the  next  case  should  be  presented  for  consideration ; 
and  if  they  are  not  excusable  for  this,  they  certainly 
ought  to  be  excused  for  desiring  to  have  it  so  fixed 
and  defined  that  they  may  hereafter  understand  what 
their  rights  really  are. 


tt  appears  to  be  conceded  by  all  that  in  the  interior 
of  the  country,  where  comparatively  small  streams 
form  the  boundaries  of  farms  or  tracts  of  land,  the 
rights  of  the  owners  extend  ad  filum  aqua,  or  to  the 
thread  of  the  stream,  which  is  generally  held  to  be  at 
the  middle  of  its  breadth;  but  for  some  reason  not 
very  apparent  it  has  frequently  been  held  in  New 
Jersey  that  the  rights  of  owners  upon  the  banks  of- 
the  same  streams,  after  they  are  sufficiently  increased 
in  size  to  be  considered  navigable,  and  especially  in 
that  part  of  their  course  where  the  tide  ebbs  and 
flows,  are  restricted  to  high  water  mark,  with  some 
undefined  claim  to  that  part  of  the  shore  or  bank 
extending  from  high  water  to  low  water. 

For  this  restriction  no  sufficient  reason  has  ever 
been  assigned,  and  we  are  entirely  unable  to  under- 
stand why  an  increased  volume  of  water,  or  the  flux 
and  reflux  of  the  tide,  can  be  supposed  to  change  or 
modify  the  rights  of  the  owner  of  the  shore.  If  this 
rule  for  determining  the  ownership  be  the  proper  one, 
the  bottom  of  a  river  flowing  through  an  extensive 
farm  may  in  one  part  belong  to  the  State,  and  in  an- 
other part  to  the  owner,  or  owners,  of  the  land  which 
forms  its  banks. 

This  uncertainty,  or  "  ignorance  of  the  law  which 
excuseth  no  man,"  has  led  to  no  inconsiderable 
amount  of  litigation  in  the  courts,  and  has  furnished 
the  plea  for  considerable  expenditures  by  the  State, 
in  attempts  to  arrive  at  something  like  certainty  re- 
specting the  ownership  of  submerged  lands  in  various 
places  within  its  boundaries,  and  especially  in  the 
counties  of  Hudson  and  Camden,  where  they  are  sup- 
posed by  some  to  be  so  valuable  that  if  the  State 
can  gain  possession  of  them,  and  establish  a  proper 


agency  for  their  management  and  sale,  a  sum  may  be 
realized  from  them  sufficient  to  pay  the  present  State 
debt  at  least. 

If  the  Legislatures  of  1848  and  1864  had  not  been 
"  ignorant  of  the  law,"  it  is  confidently  believed  that 
neither  would  have  involved  the  State  in  the  expense 
attendant  upon  the  appointment  of  commissioners  to 
inquire  into  and  report  to  succeeding  Legislatures 
respecting  a  matter  which  both  the  makers  and  the 
administrators  of  the  laws  are,  by  the  theory  of  our 
system  of  government,  supposed  to  understand — or, 
in  other  words,  to  ascertain  to  whom,  of  right,  the 
lands  under  water  in  the  State  of  New  Jersey  belong. 

Had  this  matter  been  carefully  examined  by  the 
law  makers,  they  would  unquestionably  have  learned 
that  all  navigable  waters  are  public  highways;  and 
that,  as  such,  the  long  existing  and  well  understood 
laws,  relating  to  those  constructed  upon  the  land, 
are  equally  applicable  to  those  furnished  by  creeks, 
bays,  rivers  and  other  bodies  of  navigable  water. 
The  owner  of  a  farm  bounded  on  any  side  by  a  public 
road  or  highway,  owns  the  fee  of  the  land  upon  which 
it  is  constructed,  to  the  middle  thereof — or  if  the  road 
passes  through  a  farm,  the  fee  of  the  whole  is  in  the 
land  owner,  and  he  may  carry  a  water  pipe,  or  con- 
struct an  arched  passage  under  the  roadway,  from 
one  part  of  the  farm  to  another ;  or  plant  trees  upon 
it  and  gather  the  fruit  from  them,  or  remove  them  at 
his  will ;  or  remove  earth  or  minerals  from  any  part 
of  it,  not  interfering  with  the  public  servitude  or 
easement.  And  if  those  acts  are  done  by  another 
without  the  land  owner's  leave,  the  doer  is  liable  as  a 
trespasser,  in  the  same  manner,  and  to  the  same  ex^ 
tent,  as  if  done  in  the  adjoining  enclosures, 


8 


So  rivers,  creeks,  bays  and  other  navigable  waters, 
being  public  highways,  the  ownership  or  fee  of  the 
land  over  which  the  water  flows  is  in  the  owners  of 
the  shores ;  though  the  right  to  use  the  water  for  the 
purposes  of  navigation  and  fishery  belongs  to  the 
public,  and  the  State  is  bound  to  maintain  this  public 
right  unimpaired.  And  if  mines  of  coal,  or  iron,  or 
other  minerals  be  found  extending  beneath  navigable 
waters,  the  owners  of  the  adjoining  shores  have  the 
right  to  work  them — the  owner  of  each  shore,  to  the 
middle  of  the  creek,  river  or  bay  under  which  the 
minerals  lie.  In  England  the  workings  of  some  mines 
extend  far  under  the  bed  of  the  ocean,  so  that  the 
miners  hear  the  storms  raging  over  their  heads  while 
engaged  in  their  work.  If  the  sovereign  owned  the 
soil  under  navigable  waters,  the  proprietors  of  such 
mines  could  not  thus  extend  their  workings ;  but  such 
ownership  is  not  claimed  even  there,  where  preroga- 
tive rights  are  much  more  extensive  than  are  ever 
claimed  in  this  country. 

Again :  If,  by  the  operation  of  natural  causes, 
additions  are  made  to  the  upland,  the  owner  of  the 
shore  where  it  occurs,  in  all  cases,  takes  possession 
of  the  newly  formed  land  as  the  rightful  owner — or, 
if  by  the  action  of  the  waves  or  currents,  the  upland 
is  abraded  or  carried  away,  the  shore  owner  loses  his 
right  to  occupy,  but  not  the  ownership  of  the  soil— 
the  water  which  covers  it  passes  into  the  care  and 
custody  of  the  State,  as  part  of  the  great  highway 
which  it  is  bound  to  preserve  unimpaired  for  the  use 
of  all;  unless  by  natural  causes  it  be  restored  to  its 
previous  condition. 

If  a  shore  owner  builds  a  wharf  or  pier  extending 
into  navigable  water,  without  authority  first  obtained 


from  the  State,  or  from  agents  to  whom  it  has  dele- 
gated the  right  to  decide  upon  the  propriety  of  its 
construction,  the  law  declares  it  a  common  nuisance, 
which  may  be  abated  by  the  same  proceedings  that 
are  required  for  abating  nuisances  in  highways  upon 
the  land,  caused  by  excavating  pits,  or  placing'  ob- 
structions of  any  kind  in  such  situations  as  to  render 
travel  difficult  or  dangerous.  And  should  a  vessel 
run  upon  any  such  unauthorized  dock  or  pier,  the 
owner  would  be  held  liable  for  the  damages  she  might 
sustain  by  the  collision — but  even  in  New  Jersey  it 
has  never  been  held  that  the  builder  of  a  wharf  ex- 
tending from  his  own  shore  into  navigable  water  was 
a  trespasser,  simply  because  no  man  can  commit  a 
trespass  upon  his  own  property ;  nor  has  a  suit  ever 
been  instituted  on  the  part  of  the  State  to  dispossess 
such  owner. 

The  present  Eiparian  Commissioners  have,  in  their 
report,  modestly  repeated  the  conclusion  arrived  at 
by  their  predecessors,  the  Commissioners  of  1848,  who 
expressed  the  opinion  that  the  lands  under  water  in 
Hudson  river  and  New  York  bay  are  of  great  value, 
and  that  they  ought  to  be  disposed  of  for  the  benefit 
of  the  State. 

For  their  time  and  labor  bestowed  in  hearing  claim- 
ants, collecting  facts  and  presenting  a  synopsis  of  the 
whole  to  the  Legislature,  they  were  paid  a  few  hun- 
dred dollars—  their  report  was  printed  and  forgotten. 
The  first  commission  consisted  of  three  members 
only,  but  the  present  contains  six,  and  as  they  are 
operating  on  a  much  more  extensive  scale  than  their 
predecessors — employing  secretaries,  surveyors,  drafts- 
men and  assistants,  their  expenditures,  instead  of 
being  limited  to  a  few  hundreds,  will  no  doubt  ex- 
B 


10 

tend  to  several  thousands  of  dollars  (eleven  thousand 
has  been  paid,  more  may  be  asked  for) ;  for  which  the 
treasury  of  the  State  will  probably  never  be  reim- 
bursed. 

The  idea  that  the  State  will  ever  realize  anything 
from  the  sale  of  lands  it  does  not  own,  is  an  Illusion; 
and  should  an  attempt  be  made  to  carry  out  the  plans 
suggested  in  the  Commissioners'  report,  it  would  soon 
be  found  that  parcels  of  the  New  Jersey  shores  be- 
long to  citizens  of  New  York  and  Pennsylvania,  and 
that  the  question  of  title  to  the  lands  under  water  in 
front  thereof  must  be  referred  to  the  United  States 
Courts  for  decision,  where  the  recommendations  of 
Eiparian  Commissioners  will  have  little  weight  if  the 
decisions  in  the  "Batture"  case  at  New  Orleans,  and 
the  case  of  Pintado  at  Pensacola,  are  still  held  to  be 
sound  law.  And  the  expectation  that  the  submerged 
lands  in  New  York  bay  and  Delaware  river  will  pro- 
duce a  sum  sufficient  to  discharge  the  war  debt  of 
New  Jersey,  will  be  "dissolved  like  the  baseless  fabric 
of  a  vision,  and  leave  not  a  rack  behind." 

The  whole  argument  may  be  shortly  summed  up 
thus  :  The  State,  as  conservator  of  the  public  inter- 
est, has  a  clear,  full,  perfect  and  indefeasible  right  to 
control  all  the  navigable  waters  within  its  limits,  and 
is  charged  with  the  duty  of  preserving  them  undimin- 
ished in  extent  and  with  their  usefulness  unimpaired, 
permitting  the  construction  of  no  works  therein  not 
necessary  or  beneficial  to  the  operations  of  navigation 
and  commerce,  and  permitting  such  only  after  care- 
fully ascertaining  that  they  will  add  to  the  public 
convenience.  And  on  the  other  hand,  the  State  has 
no  claim  to,  or  right  in,  land  over  which  the  navigable 


11- 

waters  flow,  except  the  right  of  eminent  domain,  and 
cannot  legally  dispose  of,  or  appropriate  to  its  own 
use,  the  smallest  portion  of  it  without  awarding 
proper  and  reasonable  compensation  therefor  to  the 
owner. 


Former  Legislation  Eespecting  Submerged  Lands, 


As  the  proceedings  of  the  late  Riparian  Commis- 
sioners excited  so  much  attention  in  Jersey  City,  as 
to  induce  the  municipal  government  to  petition  the 
Legislature  to  sanction  the  measures  proposed  by 
that  now  defunct  Board,  the  following  remarks  upon 
that  part  of  their  report  designated  "  Appendix  D," 
are  offered  for  the  consideration  of  your  readers. 

For  the  purpose  of  sustaining  their  doctrine  that- 
all  submerged  lands  within  its  limits  are  the  pro- 
perty of  the  State,  the  Commissioners  collected  to- 
gether, in  this  appendix,  a  list  of  all  grants  made 
by  the  Legislature  of  New  Jersey,  to  individuals  and 
joint  stock  companies  to  reclaim,  improve  and  occupy 
lands  under  water  in  various  places,  and  for  the  va- 
rious purposes  therein  mentioned. 

From  this  list  it  appears  that  the  first  grant  in  the 
order  of  time,  was  one  to  Nathaniel  Budd,  in  1802. 
This  does  not  assert  any  right  of  the  State  in  the 
land,  which  is  described  in  the  act  as  being  in  con- 
troversy, but  only  authorizes  the  erection  of  ferry 
houses,  stables  and  other  buildings,  at  or  near  the 


14 

said  dock  and  ferry  stairs,  on  two  acres  of  land ;  a 
part  of  which  may  have  been  covered  with  water,  but 
it  is  not  so  described. 

The  act  incorporating  the  Associates  of  the  Jersey 
Company,  which  was  passed  in  1804,  distinctly  re- 
cognizes the  ownership,  by  the  corporators,  of  the 
land  described  in  the  preamble,  a  considerable  por- 
tion of  which  was  then  lying  under  water. 

The  preamble  to  the  grant  to  Aaron  Ogden  recites 
that  he  had  acquired,  "  by  deeds,"  the  land  to  which 
the  State  relinquished  its  rights,  except  the  right  of 
sovereignty,  without  asserting  or  even  intimating 
that  it  had  any  right  of  ownership  in  the  land  de- 
scribed—  admitting,  in  fact,  that  it  already  belonged 
to  Ogden,  he  having  acquired  it  by  deeds.  If  he  had 
so  acquired  it  before  his  application  to  the  Legisla- 
ture, then  the  relinquishment  by  the  State,  of  its 
rights,  must  have  been,  not  rights  to  the  land,  of 
which  it  was  admitted  he  was  the  owner,  but  of  some 
use  or  servitude  of  which  the  grantee  desired  it  to 
be  relieved.  If  he  had  not  the  title,  as  represented, 
the  grant  by  the  Legislature  is  clearly  void,  having 
been  obtained  through  false  pretences. 

The  Hoboken  Land  and  Improvement  Company 
were  authorized,  by  their  charter,  "  to  hold,  acquire, 
and  convey  one  thousand  acres  of  land  —  and  to  fill 
up,  occupy,  and  possess  and  enjoy,  all  land  covered 
with  water  fronting  and  adjoining  the  lands  that 
may  be  owned  by  them,  and  construct  thereon 
wharves,  harbors,  piers  and  slips,  and  all  other  struc- 
tures requisite  and  proper  for  commercial  and  ship- 
ping purposes." 

And  by  an  act  dated  24th  February,  1838,  similar, 


15 

and  even  more  extensive,  powers  were  granted  to 
the  "  Bergen  Land  and  Improvement  Company." 

Sundry  other  joint  stock  companies  have  been 
chartered  from  time  to  time,  to  which  similar  pow- 
ers are  given — but  the  same  absence  of  any  pre- 
tence of  claim  to  ownership  in  the  lands  described, 
extends  through  all  the  charters  and  grants  enume- 
rated in  the  appendix ;  which  was  intended  to  in- 
clude all  that  have  heretofore  been  made  to  individ- 
uals or  corporations. 

The  State  of  New  Jersey  has  not  hitherto  sold, 
or  attempted  to  sell,  or  claimed  the  right  to  sell 
any  lands  under  water,  within  its  limits,  or  made 
any  charge  for  granting  a  right  to  occupy  such  lands, 
when  leave  to  do  so  has  been  granted  to  owners  of 
the  adjoining  shores.  But  in  a  majority  of  the  cases 
where  grants  to  construct  wharves  and  reclaim  sub- 
merged lands  have  been  made,  the  Legislature  has, 
in  direct  terms,  acknowledged  the  titles  of  shore 
owners,  to  the  lands  under  water,  described  in  the 
acts,  and  intended  to  be  occupied  by  the  works  so 
authorized  —  and  has  usually  inserted  a  clause  for- 
bidding the  grantees  from  occupying  submerged 
lands  in  front  of  upland  belonging  to  other  owners, 
without  their  consent. 

Thus  it  appears,  upon  a  careful  examination  of  the 
fifty  or  more  grants  which  are  cited  by  the  Commis- 
sioners, that  the  Legislature  never  has  "de  /<r/cfo" 
made,  or  pretended  to  make,  grants  of  the  land  to 
which  the  several  acts  relate ;  but  that  these  were 
merely  intended  as  licenses  for  the  exercise  of  ripa- 
rian rights  without  restriction,  within  certain  limits 
described  in  the  grants  —  and  although  these  are 
cited  to  prove  the  ownership  of  the  State  to  lands 


16 

under  water,  they  show  conclusively  that  in  all  legis- 
lation hitherto,  relating  to  them,  no  such  claim  has 
been  set  up,  hut  that,  in  every  case,  the  claims  of 
individual  ownership  have  been  referred  to  and  re- 
cognized. What  reason,  then,  can  there  be,  at  this 
day,  for  attempting  to  subject  the  lands  under  water 
in  New  York  bay  and  Delaware  river  to  uew,  un- 
tried and  oppressive  rules  of  law  —  depriving  shore 
owners  of  property  and  rights,  which  they  have  held 
and  exercised  so  long  that  the  memory  of  man  run- 
neth not  to  the  contrary ;  and  nullifying  the  16th 
section  of  the  first  article  of  the  Constitution  of  New 
Jersey;  for  assuredly,  asserting  and  enforcing  the 
right  to  sell  these  lands,  and  depositing  the  proceeds 
of  such  sales  in  the  public  treasury,  would  be  taking 
private  property  for  public  use  without  just  com- 
pensation. 


45S42 


'A 


